We must resist the cunning of judicial reform

The death of the 23 year old woman following the brutal gang rape and assault on a moving bus on 16 December 2012 at a hospital in Singapore early this morning [Ed. Friday 28th December 2013] leaves all of us in states of deep mourning. This is a political death. Rape and murder of women is political violence against all women, whether or not, the political class recognises and accepts this. In the course of the last two weeks, many body blows have been endured. We felt a body blow after the political death of the 17-year-old gang rape victim in Patiala who took her life after she was humiliated and pressurised to compromise. The numbing list of such political violence continues.

We have seen the emergence of many kinds of publics. There have been many speeches and writing against the emergence of a retributive public, where the cry for death penalty or castration became a vocabulary of protest, also especially since the media initially focussed largely on this demand. Yet in the last few days there has been a perceptible shift from the focus on forming a retributive public moving towards a passionately reasoned and informed public on what the government needs to do to be accountable to rape survivors, and indeed, to all of us who reject the rape cultures in India.

There has been the emergence of a public in solidarity, which has inspired, provoked and supported each one of us in our determined fight against sexual violence anywhere in the country. We have experienced Delhi differently perhaps for the first time in our lives. We have made affective connections with each other, grown from collective strength and learnt from each other.

There have been other darker responses. One standard response to any protest against sexual violence, historically speaking, is to trivialise it. The lack of initial response from the state, which seems to puzzle TV anchors so profoundly, is fairly straightforward: rape is not an issue which has ever been taken seriously by any government since the Partition violence. Protests, research and writing against rape typically have been seen as a “women’s issue” producing nervous laughter at best, if not outright, sexist remarks and jokes, even on the floor of the parliament.

The pornographic public salivating at such public “rape talk” or titillated by the anti-rape protests (or those who protested) has also found reporting. Be it women speaking out against being groped at protests or sexist commentaries about protestors or rape survivors. The political class, irrespective of party affiliations, has brought this to light, ironically enough. Abhijit Mukherjee’s sexist remark, which trivialised the protestors and the protest as the passing fad of “painted and dented women”, found inelegant retraction. Yet it signalled that those who protest against sexual violence, like the survivors of rape, will not be taken seriously, blamed for fictionalising their hurt and more significantly, judged by their makeup or clothes. Or the horrendous remarks of senior West Bengal state CPI (M) leader, Anisur Rahman, who demanded from Mamata Bannerjee, how much compensation she would demand were she to be raped.

Such remarks on the issue of compensation for rape have been made earlier in a similar exchange between Mayawati and Rita Bahaguna over compensating dalit women who by law are legitimate recipients of compensation. Underlying the sexism of these mocking comments lies the intent to trivialize women who are compensated to enable them to access the legal system (especially dalit and adivasi women), especially since many women do not have economic means to bring such cases to courts of law. Compensation when seen through patriarchal frameworks, such as by Rehman, is constructed as blood money rather than seen as a legitimate torts claim, as in many jurisdictions. After all, it is the failure of governance, planning and policing, which exposes women to greater risk of sexual violence. Not wanting to be outdone, a member of parliament from West Bengal, Kakoli Ghosh Dastidar, dismissed the charge of rape by the Park Street survivor. The sorrow expressed by the Park street survivor is heartbreaking since her voice has given tremendous courage to all of us to continue our determined fight against sexual violence. And of course, the BJP spokespersons shamelessly go on denying that Muslim women were brutally gangraped and violated in 2002. Is this not political pornography? The normalization of sexual violence in political discourse surely is pornography?

Such remarks produce the effect of immunity and impunity. Some sections of the political class seem to find pleasure in rape talk, even those voices protesting rape. There are some men who witness the protests and think they can get away with making sexist remarks. There are some men who will mimic what happened and possibly get away with it. Further, what is astounding is that the state does not recognise that by enforcing curfew, barricading the city and stopping the metro to regulate the protest, if not stifle it, the government produces greater lack of safety for women.

We also see the emergence of a public intimately engaged in the project of judicial reform. While we are called upon to respond to how best we may reform the criminal legal system and recommendations to a judicial commission by the fifth of January are elicited, there are other responses from within the state, which go past unnoticed. Note the orders passed by Additional Sessions Judge 01, Savita Rao in the Tiz Hazari Courts in Delhi on 20 December 2012, in the midst of protests in Delhi.

In State Vs. Tarkeshwar Yadav & Ors.1, the court considered an application for the withdrawal of an attempt to rape and outraging modesty complaint lodged by a landlady against her tenant. In court, despite evidence of injury, the prosecution recommended that the case be withdrawn. Upon discovering a protest petition authored by the Additional Public Prosecutor to the Director of Prosecution, where the APP argued that the prosecution should not withdraw the case since the ‘allegations are serious in nature’ and it was ‘against the interest of society’ to withdraw the case. The Directorate of Prosecution (DOP) ignored this protest petition by the APP. Ordering the Chief Secretary of Delhi to make ‘discreet enquiries’ to figure who recommended the withdrawal of the case and take action against such a person, the court noted that while

… our responsible government mulls over and declares the establishment of special courts/fast track courts to try crimes against women on the one end and on the other end in its discharge of sovereign functions accords nod to withdraw prosecution against the accused who are booked by its own law enforcement agency for the horrendous crime attempt. (at para 1)

Slamming the prosecution’s attempt to withdraw the case, Justice Rao rightly held that:

Everyday while we wake up and read the newspaper, we find the same flooded with reports of rape having been committed upon the women in Delhi. So much so, that Delhi has been declared rape capital of the country only because of the reason of schizophrenic attitude of those who do not give importance to the human values and the human rights of the females in the society. In the instant case, the court is yet to examine the truthfulness of the case of complainant or the pleas of defence, whereas this application has been moved in utter disregard of the sacrosanct duty towards the society that no injustice is done. (at para 6)

Salute, Justice Rao!

The trial courts of Delhi have rightly critiqued the judicial reform measure of fast track courts without attending to other procedural horror stories. If the DOP is not free from political interference, rape survivors are unlikely to get justice.

Since rape is a crime against society, rape survivors are more often than not dependent on the prosecutor’s office. They often do not even know that they have the right to hire a lawyer, if they can afford to do so, who can work with a prosecutor. But judicial reform will not focus on the problems faced or created by Additional and Assistant public prosecutors.

If rape survivors are sent for lie-detection tests, which are not even permissible under law, as a method of deterring them from pursuing their complaints, no fast track court will help.

If rape survivors are subjected to the two-finger test and characterized as habitués, then each trial will remain a kafkaesque experience.

If defence lawyers insist during a cross-examination that a rape survivor must lie down on a bench in a court to demonstrate the posture in which she was raped, as happened in a Rajasthan trial court, a few years back, the experience of testifying will be mimetic of rape.2

If judges insist on traces of semen, as judgments in 2011 indicate, to prove rape, then rape can never be proved in our courts of law.3

If women are routinely raped without redress in state run shelter homes designed to ostensibly protect them from violence, we should simply shut them down.

The police, CBI, prosecutors, defence lawyers and other agencies of the state continue to terrorize rape survivors to “compromise” rape cases, leading to suicides, murders and acquittals.4 It is a public secret that an acquittal can be purchased—there is a market out there for forcing rape survivors to shut up, and turn hostile. Will any law reform ever address this?

Trial judges are often helpless, when survivors are forced to turn hostile—no fast track court can fix this. The suicide of the 17 year old in Patiala is an outcome of the terror of compromise—yet there is no attempt to investigate why women are forced to compromise rape cases, when the law books clearly state that this is illegal.

Even bail hearings are based on admitting proof of compromise, which often means a statement (we have no way of determining whether these are genuine) on a stamp paper stating that a compromise between the accused and the survivor (or her family) has been reached. Shockingly, defence lawyers also bring “witnesses” who claim that the rape survivor has on a previous occasion compromised a rape case, and such a woman is a habitual liar. It is unbelievable that the evidence of such defence witnesses, on whom no reliance ought to be placed, is admitted as evidence in rape trials.5 If we would bother to read appellate judgments, we come across numerous records of such illegalities, yet these are tolerated since terrorizing women not to speak is an essential requirement of a rape culture.

Nor does the demand not to award bail really help. It cannot help since a number of elopement cases are registered as rape, kidnapping and abduction cases. The police by classifying love as rape effectively use the law on rape to regulate sexual relationships of choice. Raising the age of consent to 18, as suggested in the proposed Criminal Amendment Bill, is ridiculous since it will only criminalize adolescent sexuality without really addressing sexual violence on young people.

We need to ask ourselves whether we can de-link the issue of ensuring the right to self-determination in marriages or relationships of choice from such abuse of the rape law. The complicity between the family and the police ensures that rape survivors are shamed, censored and terrorized into silence; while women who exercise their sexual choices are forced to break up with their partners, forcibly married to men they do not love, or even sent to a jail or asylum. Rape is framed as seduction or love; and love is framed as rape and force. The issue of bail must therefore be approached cautiously.

Yet there is a need to institute measures to ensure that women who complain are not terrorized. In one case, a rape survivor was murdered since she refused to compromise the case. The man who murdered her was convicted, while his friend, the rapist, who had requested him to terrorize the victim, now dead, awaited trial.6 In another case, a young woman student was gangraped in Agra and then pursued by the men (out on bail) who raped her who threatened to rape her again or kill her family members, if she did not compromise the case.7 Rather than compromise, she preferred to kill herself. This political death did not raise any protest. No judicial reformer talks about the terrifying culture of compromise that is constitutive of rape trials in India.

The memory of these young women who have died to bring substantial transformation in the rape cultures that proliferate in our polity, society and judiciary must be kept alive by a consistent refusal to submit to the cunning of judicial reform. We must continue to protest also against the cunning rhetoric of judicial reform, which accommodates critique into the structure of the rape trial, without displacing its nature as a sexualized spectacle.

Pratiksha Baxi is Assistant Professor at the Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi. A version of this article was first published in Kafila.